92 legal scholars call on Harris to preside over Senate to include immigration in reconciliation

A group of legal scholars from around the country called on Vice President Harris and Senate Democratic leadership to include immigration protections in the reconciliation package, despite the Senate parliamentarian's ruling against the move.

The 92 scholars called on Harris, Senate Majority Leader Charles SchumerChuck SchumerDemocratic frustration with Sinema rises Schumer endorses democratic socialist India Walton in Buffalo mayor's race Guns Down America's leader says Biden 'has simply not done enough' on gun control MORE (D-N.Y.) and Senate President Pro Tempore Patrick LeahyPatrick Joseph LeahyOvernight Energy & Environment — Presented by the American Petroleum Institute — Democrats address reports that clean energy program will be axed Overnight Health Care — Presented by Carequest — Colin Powell's death highlights risks for immunocompromised On The Money — Democrats tee up Senate spending battles with GOP MORE (D-Vt.) not to "overrule" Parliamentarian Elizabeth MacDonough, whose rulings are non-binding, but for the presiding officer of the Senate to issue a ruling contrary to her advice.

"As you know, the Vice President serves as Presiding Officer when she is in attendance, and the President pro tempore or his designate serves as Presiding Officer at other times," wrote the scholars.

At issue is language that MacDonough ruled on Sept. 19 were incompatible with the rules of budget reconciliation bills. 

That language, if enacted into law, would have allowed the federal government to offer legal permanent residency to around 8 million undocumented immigrants and immigrants on humanitarian parole programs who are not currently eligible to apply for permanent residency.

MacDonough said such a move would be a substantial change in policy, and would be extraneous to the strictly-budgetary requirements known as the Byrd Rule, limiting which provisions can be included in a reconciliation bill.

"When determining whether a provision is extraneous, the Presiding Officer may rely on the Senate Parliamentarian for expert advice," wrote the scholars. "However, as past Parliamentarians have emphasized, the ultimate decision on a point of order lies with the Presiding Officer, subject to appeal to the full Senate." 

"The Presiding Officer therefore must exercise her own judgment in deciding whether a provision should be stricken from a budget reconciliation bill on Byrd Rule grounds," they added.

Reconciliation would allow Democrats to sidestep a Republican filibuster, and many immigration advocates believe the current political climate grants a unique opportunity for reform on the issue, which might not repeat itself in years.

While immigration provisions have not been at the center of intraparty debate on the reconciliation bill, groups of Democrats in the House and Senate have fought to include immigration in the bill.

MacDonough has so far struck down two separate proposals to grant legal permanent residency through relatively vague memoranda, among other things arguing that a permanent status would have such non-budgetary impacts as to outweigh its budgetary effects.

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The scholars wrote that the parliamentarian cannot make a final authoritative determination on that point — that only the presiding officer or the full Senate on appeal can do so. To successfully appeal the presiding officer's ruling, Republicans would need to garner 60 votes.
 
Senate Democrats would still need 51 votes to pass the final bill, meaning Harris would have to be present and presiding over the Senate to cast the tie-breaking vote.
 
And the scholars argue the budgetary effects of granting legal permanent residency status to millions of people would be more than substantial.

"The outlay and revenue effects of extending LPR status to 8 million people are sweeping. The Congressional Budget Office estimates that the budgetary effect of the LPR provisions would be $140 billion over the next 10 years — more than the entire effect of some statutes enacted through budget reconciliation in the past," they wrote.

The scholars listed a series of social programs and taxes that would be directly affected by granting the status to a large population, from the Affordable Care Act to increases in tax revenues from workers with better salaries.

Although the Byrd Rule does not allow for provisions with a "merely incidental" effect on the budget, the scholars argue the scope of a broad legalization package would have a direct and substantial effect on the federal budget.

"We see no basis in law or precedent for concluding that these outlay-related effects are 'merely incidental' to LPR status. Access to health insurance, homeownership and affordable rental housing, higher education, and income security cannot be characterized as 'chance or minor consequence[s].' They are, along with the non-budget-related benefits that the Parliamentarian canvassed, key elements of lawful permanent residence," they wrote.

Still, the group — which includes former Democratic Sen. Russ Feingold (Wis.) — wrote that the Democrats presiding over the Senate should not "overrule" MacDonough, rather take the responsibility for implementing the Byrd Rule.

"For the Senate to reach its own conclusion on the Byrd Rule’s application to [immigration provisions] should not be seen as an 'overruling' of anyone. Rather, it would recognize that elected members of Congress are ultimately responsible for deciding whether to enact legislation, in accord with statutory constraints, the advice of civil servants, the voices of their constituents, and their own considered judgment," they wrote.

CORRECTION: A successful appeal of a presiding officer's ruling would require 60 votes in the Senate on a procedural motion. An earlier version of this story included incorrect information.